The Specious Argument That Caps On Punitive Damages Are Affirmative Defenses That Must Be Pleaded

As readers undoubtedly are aware, concerns about upward spiraling punitive awards have prompted many state legislatures to enact caps on punitive damages.  The plaintiff bar's first line of attack on such statutes has been to challenge them under various provisions of state constitutions.

When that tactic has failed—as it has in most states—a second option in some plaintiffs' playbook has been to assert in individual cases that the defendant forfeited the right to receive the benefit of the cap by not pleading it as an affirmative defense.  For example, the plaintiff has invoked this argument in the Montana Supreme Court case about which Andy Frey and Rory Schneider blogged a couple of months ago.